Advocacy-Matters-Summer-2021

ADVOCACY MATTERS
The Advocates’ Society
SUMMER 2021

#TASProud
Congratulations to the TAS leaders appointed to the bench
in 2020/21 to serve the justice system after going above and
beyond to serve our members and the work of TAS.
The Hon. Justice Kathleen Erin Cullin, former TAS Board Member
appointed a Judge of the Superior Court of Justice of Ontario.
The Hon. Justice Kristin Muszynski, former YASC Kingston
member appointed as a Judge of the Superior Court of Justice
of Ontario.
The Hon. Justice Alexander Pless, former TAS Board Member
and Quebec Regional Advisory member appointed as a puisne
judge of the Superior Court of Quebec.
The Hon. Justice Roger Chown, former TAS Board Member
appointed as a Judge of the Superior Court of Justice of Ontario.
The Hon. Justice Simon Coval, former Chair of British Columbia
Regional Advisory Committee appointed as a Judge of the Supreme
Court of British Columbia.
The Hon. Justice Marie-Andrée Vermette, former TAS Board
Member appointed as a Judge of the Superior Court of Justice
of Ontario.
The Hon. Justice Lorena K. Harris, former Alberta Regional
Advisory Committee member appointed as a Justice of the Court
of Queen’s Bench of Alberta.
The Hon. Justice Jill R. Presser, former TAS intervention counsel
appointed as a Judge of the Superior Court of Justice of Ontario.
The Hon. Justice Colin C.J. Feasby, former Appellate Advocacy
Practice Group Secretary appointed as a Justice of the Court of
Queen’s Bench of Alberta.
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What the TWEET is this?
When you see this icon, throughout the publication,
click on it to see what members are tweeting about.
CONTENTS
Chair Chat
Emily Lawrence, Paliare Roland Rosenberg Rothstein LLP
Mentoring Across Differences
Lisa Marie Buccella, Aviva Trial Lawyers
“You Don’t Look Like a Lawyer!”
Megan Keenberg, C.S., Van Kralingen & Keenberg LLP
Participating in the
Modern Advocacy Task Force
Featuring Steven Frankel, Davies Ward Phillips & Vineberg LLP, Frédéric
Plamondon, Osler, Hoskin & Harcourt LLP, and Chloe Snider, Dentons
Compiled by Tamara Ramsey, Dale & Lessmann LLP
Interview with incoming TAS President,
Deborah E. Palter
Compiled by Michelle Alton, Tribunal General Counsel
Editor: Tamara Ramsey, Dale & Lessmann LLP
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
Advocacy Matters Editorial Team: Andrew Gibbs, Department of Justice, Christine J. Vanderschoot, Vanderschoot Family Law, Megan Keenberg,
Van Kralingen & Keenberg LLP, Daniel Baum, Langlois Avocats, S.E.N.C.R.L., Ayesha Laldin, Department of Justice, Michelle Alton, Workplace Safety
and Insurance Appeals Tribunal
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CHAIR CHAT
Chair Chat
Emily Lawrence,
Paliare Roland Rosenberg Rothstein LLP
Now Live! Friends Who Argue - A new TAS podcast jointly
hosted by our Young Advocate and 10+ Standing Committees.
Segments will feature dialogue with the people who get what you
do, as we delve into both the serious and lighthearted aspects of
life as an advocate in Canada. Know a TAS member we should
talk to? Contact Webnesh Haile at WHaile@singleton.com
Thank you to our Technical Sponsor Dentons Canada LLP
for their support in producing this podcast!
Summer is upon us. As I take on the reins of the 10+ Committee for the 2021-2022 term, I am
struck with how much has changed in such a short period of time. As vaccination rates increase
and re-opening talk begins in my city, I have been thinking about when and how our legal community
will re-emerge from the last eighteen months.
This coming year will be one slowly treading back into a new “new normal.” Big and small firms
wrestle through if and/or when to bring lawyers and staff back into the office. I cannot wait until
we are able to meet again in offices, courtrooms, robing rooms and restaurants but I approach the
coming months with optimism and some trepidation.
What are we coming back to? Reconnecting with friends, colleagues, clients and trusted staff,
and returning to the best traditions of oral advocacy, yes. But also new colleagues we have never
met in person; new calls who have never donned their robes and fought the poor acoustics
of a large courtroom. Friends who have lost loved ones in Canada and abroad. Parents who are
broken from home-schooling. Clients who love the benefits of remote representation, and clients
who have been denied justice by backlog and delay. A society that is finally, maybe, reckoning with
Canada’s historical and continuing anti-Black racism, anti-Muslim acts of terror, and the colonial
oppression of Indigenous peoples. A possible fourth wave in the fall.
This year, our Committee will continue our representation of mid-career advocates, the emerging
and future leaders of the profession. We will concentrate our focus on evergreen themes –
networking events, educational programming, speakers’ series on current topics – but all suffused
with an acknowledgement that, individually and collectively, we have been changed by the last
year and a half, in profound and tiny ways. This is a time to gather, share our experiences, fill our
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cups, and fill in some gaps.
In the coming term, we will continue to focus
on topics relevant to mid-career lawyers, as advocates,
as business owners, as mentors and champions,
and as holders of privilege and power in
our communities. In an age of decreasing court
time, so vividly detailed in TAS’ Modern Advocacy
Task Force report, our programming will focus on
how to develop positive mentoring and championing
relationships with our more junior colleagues
(remotely and in-person). As the courts
and the legal community negotiate the practice
of advocacy post-pandemic, our Committee will
continue to engage our demographic in topics
relating to the business and management of our
practices as businesses. As mentors, managers
and business owners, we need to advance discussions
about diversity, inclusion and equity within
the legal system, and within our communities as
a whole. We will explore how mid-career lawyers
can be agents of renewal and change. As peers
and friends, we need to acknowledge that this
year has been a period of loss and grief, isolation,
exhaustion, and insecurity for so many, and build
spaces to discuss practices of well-being and resiliency
within advocacy.
I am excited and grateful to be chairing the 10+
Committee now, in this year of transition. I will
take many lessons from the extraordinary Yola
Ventresca, the 2020-2021 chair of this Committee,
and much guidance from my co-executive members,
Chloe Snider and Steven Frankel. Our 10+
Committee members hail from across the country,
and we are extremely fortunate to have members
with diverse practice areas and experiences.
Among them is the incredible team at Advocacy
Matters led by Tamara Ramsey. Inside you will find
insightful pieces and interesting interviews.
I look forward to the coming term. Watch your
inboxes for news about our slate of thought-provoking
and meaningful events. In the meantime,
have a safe and restorative summer.
Appellate Advocacy
Thursday, October 14, 2021
1:00 pm - 4:30 pm (ET)
Live Online
Appellate Advocacy will provide you with key insights on how to
capture and maintain the court’s attention and give your client the
best chance for success. Appellate judges and experienced appeal
counsel will share invaluable guidance on how you can improve
your facta drafting, hearing preparation, oral argument and more.
To learn more or register, click here
or visit www.advocates.ca
Smart Advocates
Never Stop Learning
The Bench Speaks
Friday, November 26, 2021
1:00 pm - 4:00 pm (ET)
Live Online
This year we will be bringing you judges from across the country
to share their experiences in an interactive remote forum. We’ll
hear from newly appointed judges and seasoned members of the
Bench about their views on everything from the challenges of daily
life in the pandemic across the country, access to justice, and how
we can take what we’ve learned and improve our judicial system.
To learn more or register, click here
or visit www.advocates.ca
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the journey that mentees are on and noted that
what may appear to be shared experiences can
vary considerably below the surface and do not
guarantee compatibility between a mentor and
a mentee.
EVENT REPORT
Mentoring Across Differences
Lisa Marie Buccella, Aviva Trial Lawyers
In mentoring relationships, the ability to relate is often considered a key ingredient for success.
That focus on relatability, however, comes with its own hazards: if we conflate our ability to relate
with having shared characteristics—whether age, gender, cultural background or otherwise—we
risk developing and learning from people only like ourselves, and in so doing, leaving others out.
Tenured lawyers need to take the lead when it comes to mentoring across differences, creating
the conditions for people from diverse backgrounds to feel included and thrive. On May 3, 2021,
the Mentoring Committee of The Advocates’ Society’s 10+ Standing Committee presented Mentoring
Across Differences featuring panelists Megan Keenberg of Van Kralingen & Keenberg LLP, Lucas
Lung of Lerners LLP, Jennifer Mathers McHenry
of Mathers McHenry & Co., and Walied Soliman
of Norton Rose Fulbright Canada LLP, and moderated
by Sapna Thakker of Lax O’Sullivan Lisus
Gottlieb. This piece shares some of the key insights
from the event.
Matching is beneficial... but
Matching refers to instances where mentors
and mentees are connected based on shared
characteristics or backgrounds. This can be
beneficial, as junior lawyers see a part of themselves
in their mentor, and where both can connect
through shared experiences. Walied Soliman
spoke of an instance where he was able to
meaningfully counsel a young lawyer on breaking
fast during Ramadan or leaving a meeting
for Friday prayers. Jennifer Mathers McHenry
agreed matching can be important but noted
it is not always available. She emphasized the
importance of mentors seeking to understand
Understand the career journey
Linear career journeys are less common than a
generation ago. In many cases, the career ladder
has been replaced by the jungle gym, and
people enter our profession at different points
in their careers, and with different objectives.
Understanding a mentee’s objectives in the profession
and what they bring to the table is key;
mentors need to be intentional in asking about
career objectives and understanding how mentees
can leverage diverse professional and personal
backgrounds for the benefit of their clients,
organizations, and the profession.
Champion positive behaviors
Jennifer Mathers McHenry noted that there
continues to be a tendency in our industry to
accept behaviors that wouldn’t be accepted outside
of the industry. Shifting attitudes around
work, accelerated by the COVID-19 pandemic
and the #MeToo movement, have changed
what is acceptable—not only tolerance for traditional
“bad behavior” such as sexism, bullying
and harassment but more broadly, behaviors
and practices that compromise worth and wellbeing,
such as inappropriate work-life boundaries.
Lucas Lung noted that it can be challenging
for young lawyers to address uncomfortable
and unacceptable behaviors, while those more
seasoned in the profession have become accustomed
to turning the other way, offering their
mentees sympathy and counselling avoidance
instead of leveraging their credibility to effect
positive change. Especially when mentoring
across differences, understand that it requires
courage for a mentee to discuss concerns of this
nature, and it creates an obligation for mentors
not just to support, but to act.
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THE LEGAL EXPERIENCE
“You Don’t Look
Like a Lawyer!”
Megan Keenberg, C.S.,
Van Kralingen & Keenberg LLP
It was my first ex parte appearance. I spent hours trying to strike the right balance of zealous advocacy
while giving full and frank disclosure. Robed and ready, I introduced myself to the court, “Megan
Keenberg, K-E-E-N-B-E-R-G, first initial M.” The judge addressed me as “Megan” even though
everyone else in court was addressed as “Counsel” or by their surnames. It was jarringly casual
and threw me off a bit, but I regrouped and answered all his tough questions.
My preparation paid off. Order in hand, I ran back to the office triumphant. “I got the Order!”
My principal clasped his hands together, cocked his head to the side and said, “Awww. The judge
thinks you’re pretty!” In an instant, my jubilation
evaporated. All that hard work undermined; the
win discounted. My face fell. “C’mon,” he said
with a light side hug, “I’m joking! Lighten up.” I
bristled, knowing that it would never occur to
him to joke that a male colleague got a favourable
order because he’s handsome. But I didn’t
want to be labelled a whiner, so I brushed it off.
Later that day, I walked into a boardroom for
a meeting where I was the only woman in attendance.
Lead counsel started off the meeting by
cheerily greeting us with “Hello Gentlemen!” as
if I didn’t exist. Ouch. Double ouch coming on
the heels of “Aww, the judge thinks you’re pretty”.
Triple ouch after the judge addressed me by
my given name.
These are microaggressions: casual everyday
slights arising out of the unconscious biases,
assumptions and stereotypes operating behind
the scenes in the speaker’s mind. The speaker
is typically unaware of the sting of these slights
and rarely if ever intends harm. Each one, taken
on its own, may not seem like a big deal, but
cumulatively, their harm is staggering. Studies
have shown significant mental and physical
health effects caused by being relentlessly subjected
to microaggressions. 1
The term “microaggression” was coined by
Harvard psychiatrist Dr. Chester M. Pierce in
the context of studying subtle racism. 2 In subsequent
years, Dr. Derald Wing Sue, a professor
of psychology at Columbia University, broadened
the taxonomy of microaggressions to targets
from any and all marginalized groups. Dr.
Sue defines microaggressions as “the everyday
slights, indignities, put-downs and insults that
members of marginalized groups experience
in their day-to-day interactions with individuals
who are often unaware that they have engaged
in an offensive or demeaning way.” 3
The term “microaggression” has attracted criticism
for two ways in which it is somewhat misleading.
First, the “micro” part of the definition
emphasizes the smallness of an individual slight
but can inadvertently lead people to equate the
‘triviality’ of a single comment with the cumulative
harm of dozens. In isolation, a single microaggression
does not pack the same punch as the
gross and obvious racism and sexism that make
headline news. When we speak up about any
single incident, we are told we are being oversensitive,
that we need to develop a thicker skin.
Take a joke. Lighten up. This narrow focus on
isolated acts or comments diminishes the very
significant cumulative harm that results from
multiple stings. Each small slight is compounded
by the next and the next and the next.
Second, the “aggression” part of the definition
carries its own stigma because it suggests an
intentionality that is typically absent. People become
defensive when called out for a microaggression,
feeling falsely accused of hostility or
intentional racism or sexism. This is a natural
reaction. It is a massive blow to the core beliefs
we hold about ourselves, our values, and our
characters to be so accused, especially when we
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consider ourselves to be fundamentally decent
people, allies or even members of marginalized
groups ourselves. The more we pride ourselves
on being decent and conscientious and inclusive,
the harder it is to accept criticism that threatens
this core belief. As a result, decent people often
tune out discussions about microaggressions,
because they know that they would never intentionally
hurt or offend anyone, and so they feel
these discussions don’t apply to them.
The fact is that all of us – the decent people, the
jokesters, the jerks, the allies, the woke, the marginalized
– all of us are subject to unconscious
bias, we all operate on a set of default assumptions
about others and as a result, we all inadvertently
engage in microaggressions. It’s not
our fault, and it doesn’t mean we harbour secret
hatred. This is a neuroscience issue, not an ideological
one. Our conscious brains do not have
the opportunity to interpret all the information
we take in. For us to perform at high levels as humans,
our brains have developed to permit us to
take shortcuts on decision-making and pattern
recognition. One of those shortcuts is the rapid
and automatic categorization of other people as
being “like me” or “not like me”, and consequently
“in-group” and “out-group”. 4 This is universal
and not indicative of consciously held beliefs or
deep-seated prejudices. That may be easy to accept
intellectually, but the kneejerk defensive reaction
is difficult to overcome.
Drs. Tiffany Jana and Michael Baran have offered
a clearer and more accessible term to describe
what have historically been known as microaggressions,
that may circumvent some of
that kneejerk defensiveness. They use the term
“subtle acts of exclusion” or “SAE”. 5 SAE is clearer
because it is anchored in the unconscious and
automatic in-group/ out-group categorization
our brains perform and it doesn’t inadvertently
minimize the effects of these acts. It is more accessible
because it avoids a blame game, thereby
welcoming more people into the discussion.
In the legal profession, subtle acts of exclusion
are directed toward people who don’t fit
the historic and current narrative of the prototypical
lawyer, which is defined by the dominant
in-group in the profession. Who is the prototypical
lawyer? Indulge me in a thought experiment.
Picture this scene:
It’s a high-profile, high-stakes commercial
case. The Lawyer strides into court, robed
and armed with four banker’s boxes of materials,
confident and calm, a student in tow.
Opposing Counsel nods hello, jots down a
few last-minute notes, then ambles over to
shake hands and exchange pleasantries. A
double knock at the door near the bench signals
the Judge’s entrance. All rise. The Judge
enters, sits; court is in session. The Lawyer
stands to deliver the opening statement.
When this scene played out in your mind’s
eye, who did you picture in the role of the Lawyer?
How about Opposing Counsel? The Judge?
Chances are you pictured senior white men in
all the leading roles. That’s what lawyers look
like, right? Even for those of us who do not
belong to the dominant group - that’s who we
picture. This is the narrative that has taken root
in our collective unconscious.
Many lawyers in Canada fit the prototypical
description. For anyone who does not, there
are thousands of ways in which we are reminded
of our otherness and subtly excluded from
the profession every day. We are repeatedly
told that we “don’t look like a lawyer” both expressly
and tacitly.
In a recent issue of The Advocates’ Journal, Sandra
Barton shared a jarring story illustrative of
her experience as a Black woman on Bay Street.
Ms Barton parked her car in the underground
parkade beneath the tower that housed Heenan
Blaikie, where she was a partner. A parking attendant
told her that she couldn’t park there
because it was reserved for ‘Heenan Blaikie employees’.
In the parking attendant’s mind, Sandra
Barton did not look like a lawyer. As she
eloquently observed:
[D]espite the fact that I was dressed in business
attire, standing in the parking lot of a downtown
skyscraper, and being a well-spoken
woman many years his senior, he had made
assumptions about who I was, or more importantly,
about who I could not possibly be. 6
Even as the profession continues to evolve
and embrace diversity, there remain latent assumptions
about race and gender that undermine
meaningful inclusion for racialized and
women lawyers. Lawyers from across Canada
shared their SAE stories with me, on the condition
of anonymity. These are their stories.
One lawyer shared a litany of experiences,
demonstrating the persistent crackle of SAE
that permeates his day-to-day practice:
A senior partner often referred me to as the
“skinny Indian fellow”.
I used the term “puck ragging” with a client.
He later told the senior partner that I was a
“good Canadian” because I knew hockey slang.
At a meeting to discuss business development,
I was told to focus my efforts on Brampton.
A colleague asked me if the mauli on my wrist,
which Hindus wear after religious festivals, was
a friendship bracelet.
After seeing me with a BIPOC client, a colleague
asked if my family was visiting the office.
The assumptions underlying these comments
skew our sense of merit-based success,
leading to a backlash against inclusion efforts
that further disenfranchises lawyers from marginalized
groups:
A partner’s son was applying for law school
but had been rejected by his school of choice
despite having a strong academic background.
In the context of discussing his experience, the
lawyers casually commented that the reason
for his rejection was because he was white, and
schools nowadays were placing a premium on
“diverse” candidates. I felt that my experiences
were dismissed by that single comment. It belied
the reality that law schools are still woefully
inadequate in accepting diverse candidates,
and that students like me have had to overcome
higher hurdles in order to even compete
with candidates like the partner’s son. Moreover,
I couldn’t help but think that perhaps I
myself was this “diversity” hire.
Subtle acts of exclusion based on assumptions
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about gender are also far more prevalent among
the bench and bar than many realize. There
seems to be a pervasive shortcut that people in
the profession default to, which is that women
hold support positions rather than leading roles
in law. Women lawyers are habitually mistaken
for administrative staff, even by other women:
When I had been at my firm for a few years,
I attended one of our work parties. We invite
retired staff, lawyers, and assistants to attend,
and they do. One of the retired staff was there
and when she saw/met me, she asked: “So,
which lawyer do you work for?”, assuming of
course that I was an assistant.
Women in the profession are also made invisible
by defaulting to male-oriented language.
We are not included in the “Hello Gentlemen”
greeting. We are not and can never be members
of the “Old Boys’ Club”. We can never be
tested by trials that “separate the men from the
boys”. We are not one of the “guys”. This comes
out even more subtly when reference is made
to male-oriented accoutrements that are not
necessarily shared with women:
In an educational seminar, the Judge speaking
tells lawyers that it is important to keep
up decorum by continuing to wear a “jacket
and tie”. The assumption being that all lawyers
are male - with reference to suit and
tie. Reference should be to business attire.
Women do not wear a jacket and tie - this
phrase make us “invisible”.
Women in law must also contend with a
multitude of assumptions based on family
status and household roles. A senior lawyer
shared her chagrin at a male associate’s comment
following her promotion to Of Counsel.
He characterized her elevated position as the
“mommy track”.
Another lawyer, who is one half of a well-respected
legal power couple, expressed dismay
that she fields all the questions from colleagues
about work / life balance, but her husband is
never asked how he manages to juggle a busy
practice while raising three kids. The assumption
is that she, as the mother, bears primary
responsibility for child-rearing, while he is free
to focus on his career.
These assumptions persist regardless of actual
family status. A single, child-free family lawyer
shared with me that often when she is in a
meeting or a mediation that runs past the end
of business, she is asked whether she needs to
call her husband before agreeing to stay late.
The unspoken assumption is that she must have
household responsibilities that a man is relying
on her to perform, so she needs his permission
or approval to work.
These types of assumptions about division of
household labour responsibilities factor into
perceptions of working mothers’ commitment
to their practice and their worth to their firms.
As one working mother shared:
[The] regional chair of litigation in my first
annual evaluation following return from mat
leave insist[ed] that I should enter into an alternative
work arrangement and take a pay
cut to reflect the lower hours in the first year
following my return from mat leave “for my
own good”.
A lot of the gendered acts of exclusion seen
in the legal profession could easily be conflated
with junior status. Junior women are routinely
advised not to take offense to various SAE as
they are simply part of the dues-paying that
all junior lawyers are subjected to, regardless
of gender. Yet, while our male counterparts
are permitted to grow out of their dues-paying
apprenticeships, women are often expected
to continue to perform non-legal work as they
become more senior. Many women lawyers described
situations where they were expected
to perform “secretarial” tasks such as note-taking
or running blacklines, fetching coffee, and
making photocopies, or non-billable firm work
such as party-planning and recruitment. As one
woman observed:
At first I brushed it off as “junior” work but as I
became more senior as a lawyer, the expectations
stayed the same. After I made partner, a
younger male associate casually asked me to
take notes in a client meeting – with my client.
The anecdote I shared off the top about the
judge addressing me by my given name is not
an isolated event. I have frequently been addressed
as “Megan” in court by bench and bar
alike, as my learned friends are dignified with titles
and surnames. This is oddly infantilizing and
suggestive of a lesser position. As irksome as it
is, I have never called anyone out for doing so,
because my concerns about alienating the judge
and jeopardizing my client’s case will always outweigh
my own discomfort in the moment.
Similarly, outside of court, it can be difficult to
pipe up about SAE in firms, meetings or at events.
Often the comments come and go so quickly and
casually that there doesn’t seem to be an opportunity
to examine them. Sometimes they knock
the wind right out of our sails and we can’t think
of a good comeback. Then the moment passes,
and we downplay the incident even to ourselves
with unhelpful self-talk (lighten up, take a joke,
don’t be so sensitive, it’s no big deal.)
The crushing thing about this is that the people
who unknowingly hurt us with these subtle
acts of exclusion are our friends, our colleagues,
our clients, and our mentors. We know that they
are well-intentioned decent people, and it’s uncomfortable
to confront a colleague who may
react defensively. We can’t risk the fallout if we
dare to call out the person who signs our paycheques
or allocates work. We want to preserve
our relationships. We want to be seen as team
players who can take a joke. We don’t want to be
labelled a whiner or dismissed as being ‘oversensitive’.
For the few of us who dare speak up,
it’s exhausting to take on the burden of managing
another’s emotional reaction while we ourselves
are hurting. It’s exhausting to take up the
mantle of changing mindsets. These burdens
are disproportionately placed on the shoulders
of lawyers who are already marginalized.
All of us can help ease these burdens in two
ways: first, we can audit and challenge our
own underlying assumptions with a view to
minimizing the SAE we unconsciously perpetrate;
and second, we can take on the burden
of identifying and disarming SAE on behalf of
others as allies.
Self-auditing is literally the least we can do.
As litigators we are experts in critical thinking
and analysis. We can and must turn these superpowers
on ourselves. A useful heuristic is to
simply ask yourself: Would I say that to a white
man? Would you refer to a white lawyer as “the
skinny white fellow”? Would you insist that a
new father returning from parental leave take
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a pay cut and reduced hours
“for his own good”? Would you
congratulate a male lawyer on
a favourable result in court by
telling him that the judge must
have found him handsome?
Would you address a mixed-gender
group with “Hello Ladies”? If
it sounds ridiculous to say these
things to white men, then it is
also ridiculous to say them to
women and racialized lawyers.
We need to also step up as allies
when others are not able
to correct their own SAE with
self-reflection. Diane Goodman,
a social justice and diversity consultant,
offers a roadmap of microinterventions
that can be used
to great effect by bystanders to
gently educate those who are unwittingly
engaging in SAE without
making them defensive or risking
a rupture of the relationship.
These microinterventions are
particularly effective and persuasive
when undertaken by someone
in the same group as the
commenter. This is how we can
create a more inclusive norm in
the legal profession:
This much is clear: the face of
the legal profession is changing
and will continue to change. For
anyone who needs to hear it, if
you’ve passed the bar, you look
like a lawyer.
RESTATE OR PARAPHRASE.
“I think I heard you
saying____________
(paraphrase their comments).
Is that correct?”
PRETEND YOU DON’T
UNDERSTAND.
As people try to explain their
comments, they often realize how
silly they sound. “I don’t get it…….”
“Why is that funny?”
ASK FOR CLARIFICATION
OR MORE INFORMATION.
“Could you say more about
what you mean by that?”
“How have you come to
think that?”
SHARE YOUR OWN PROCESS.
“I noticed that you ___________
(comment/behavior). I used
to do/say that too, but then I
learned____________.”
USE HUMOR.
Exaggerate comment, use gentle
sarcasm. “She plays like a girl?
You mean she plays like Serena
Williams?”
CHALLENGE THE STEREOTYPE.
Give information, share your own
experience and/or offer alternative
perspectives. “Actually, in my
experience__________________.”
“I think that’s a stereotype. I’ve
learned that_______________.”
APPEAL TO VALUES AND
PRINCIPLES.
Notes
“I know you really care about
_________. Acting in this way really
undermines those intentions.” 7
SEPARATE INTENT FROM
IMPACT.
“I know you didn’t realize
this, but when you __________
(comment/behavior), it
was hurtful/offensive
because___________. Instead
you could___________ (different
language or behavior.)”
1. See e.g., Nadal, K.L., (2018) Microaggressions and Traumatic
Stress: Theory, Research and Clinical Treatment, American Psychological
Association
2. Pierce, C. (1970). Offensive mechanisms. In F. B. Barbour
(Ed.), The Black seventies (pp. 265–282). Boston, MA: Porter
Sargent.
3. Sue, D.W. & Spanierman, L. B. (2020), Microaggressions in Everyday
Life (2 nd Ed.) Hoboken, NJ: Wiley
4. See e.g., Agarwal, P. (2020), Sway: Unravelling Unconscious
Bias (Bloomsbury Signma).
5. Jana, T. & Baran, M. (2020), Subtle Acts of Exclusion: How
to Understand, Identify, and Stop Microaggressions (Berrett-Koehler).
6. Barton, S. (2021), Uncensored: The Black, female advocate on Bay
Street, The Advocates’ Journal Vol. 40, No.1; Summer 2021 [emphasis
in original].
7. Excerpted from Goodman, D. (2011) Promoting Diversity and
Social Justice: Educating People from Privileged Groups. New
York: Routledge.
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Women in Litigation
Symposium (Ontario)
Friday, October 29, 2021
9:00 am - 1:00 pm (ET)
Live Online
The Pandemic has shed light on some of
the unique challenges faced by women in
the legal profession. In the last two years,
you may have also taken on the role of
caregiver, teacher, coach, therapist and
nurse while still trying to grow a successful
litigation practice.
The Advocates’ Society’s award-winning
biennial Women in Litigation Symposium
is returning this Fall to discuss and explore
how we can be better allies and champions
for ourselves and one another.
Women litigators and judges will assemble
from across Ontario to discuss the ways we
can all improve the practice of law for women
moving forward, together. Join us to receive
candid advice and practical strategies for
enhancing your life and practice as a litigator.
All cis women, trans women and non-binary
litigators who are comfortable in a space that
centres the experiences of women litigators
are welcome to attend this Symposium.
To learn more or register, click here
or visit www.advocates.ca
ROUNDTABLE
Participating in the Modern
Advocacy Task Force
Featuring Steven Frankel,
Davies Ward Phillips & Vineberg LLP,
Frédéric Plamondon, Osler, Hoskin & Harcourt LLP,
and Chloe Snider, Dentons
Compiled by Tamara Ramsey,
Dale & Lessmann LLP
The final report of the Modern Advocacy Task Force (MATF) was released on June 14, 2021. The
Advocates’ Society established the MATF just over a year earlier. The Task Force’s ambitious goal
was to offer recommendations for the reform of the Canadian justice system based on the best
measures adapted by the courts during the COVID-19 pandemic and other measures designed to
ensure meaningful and substantive access to justice. The work of MATF included historical and
cross-jurisdictional research, consulting with an advisory panel of some of the most respected
jurists and counsel in Canada and holding virtual symposia across Canada to gather insights from
members of the profession. The final report offers significant background information and analysis
to assist in the modernization of the justice system.
19

Steven Frankel, Davies Ward Phillips & Vineberg LLP
Frédéric Plamondon, Osler, Hoskin & Harcourt LLP
We connected with three TAS members, Chloe
Snider, Steven Frankel and Frédéric Plamondon,
who were involved in the MATF, to get their insights
into the work of the Task Force and the
Final Report.
What was your involvement in MATF, and
what did you find interesting about it?
FP: I was mainly involved with the History & Major
Jurisprudence/Writing Research Sub-Committee.
I recall that when I first joined this Task
Force, I was biased towards preserving advocacy
in much of its present form, although I was
certainly open to incremental modernization,
in particular with our courts in Québec. We really
saw our role within this initiative as ensuring
that the discussion was informed by a solid
understanding of history and took into account
any important jurisprudence. It was extremely
interesting to rebuild the story behind the tradition
of oral advocacy, which dates back more
than 2,000 years to the ancient civilizations of
the Mediterranean!
CS: I was also involved in researching the foundations
of oral advocacy in Canadian and Western
history and jurisprudence, to look at the
development of the importance of our right to
an oral hearing. I was struck by the lack of clear
legislation either in Canada or in the United
Kingdom that expressly provides for the right to
an oral hearing. Rather, the basis for this right
is developed in the common law, particularly in
the administrative law context based on principles
of equity and justice.
SF: I was part of a small group of Task Force
members who engaged with stakeholders
across the country. Our job was to ensure
that the views of advocates and members
of the judiciary from coast-to-coast-to-coast
concerning the future of oral advocacy in Canada
were properly considered. My particular
responsibility was to identify and interview
advocates from a range of seniority levels
and practice areas in Québec. I really enjoyed
meeting with colleagues in Québec that otherwise
I probably would not interact with – including
members of the criminal defence bar
– and listening to their different perspectives
on what is and is not working with respect to
oral advocacy and the administration of justice
during the pandemic.
Please describe something from the Final
Report that resonated with you.
FP: Other than the 408 footnotes contained in
the 119-page report, one thing that resonated
with me is that we, our profession, were able to
rethink, in an expedited fashion, the entire legal
system on a national and harmonized basis, all
in the context of an unprecedented pandemic.
For me, what transcends this report is the richness
of our civil and common law history behind
oral advocacy, and the openness of advocates
and judges to meaningful changes to the legal
system, with the common objective to preserve
access to justice.
SF: There is a broad consensus that in-person
oral advocacy still plays – and must continue
to play – a vital role in our justice system. Yes,
we have all adapted to the pandemic and know
how to conduct examinations and deliver submissions
via Zoom (or similar platforms). But
remote advocacy, as good a substitute as it is,
is not a long-term solution for resolving significant
disputes. This is particularly true in criminal
matters. To paraphrase Sir Robert Megarry: the
most important person in a courtroom is the litigant
who is about to lose. It is critical that that
person feels they have had a “fair crack at the
whip”. The loser may not feel they have had a
fair shot if their case cannot be presented, and
the other side’s case tested, live and in-person
in front of a judge or jury.
Chloe Snider, Dentons
20 21

CS: One thing that resonated with me was about
how we engage with oral argument – both as the
lawyer in distilling and fine-tuning one’s argument
before the hearing, and as the judge in learning
about the case, including the applicable law. The
speaker is forced to learn the material more deeply
and the learner becomes more engaged. Sometimes
it is nice when someone makes a presentation
and teaches you something, as opposed to
learning everything by reading.
How do you see the work of MATF influencing
advocacy in the future in the courts/tribunals
in which you practise?
SF: I hope the Report will spur discussions
among not only members of the bar and judiciary,
but also policymakers in government who
ultimately control the purse-strings for our justice
system. Everyone knows that there is significant
work to be done to improve access to justice,
as well as to dispense justice more quickly
in both criminal and especially civil matters. It
is also obvious that technology and the use of
remote hearings, if deployed smartly and appropriately,
are important tools. Ensuring that
those tools are available across Canada will require
a serious financial commitment.
CS: Hopefully the work of the MATF will lead
counsel to evaluate on a case-by-case/hearing-by-hearing
basis what type of hearing is necessary.
For example, routine scheduling matters,
like Civil Practice Court in Toronto, are a
great fit for virtual hearings (in my view!). A trial
is likely better in person when circumstances allow.
I think the matrix set out in the report (the
Model Framework for Determining the Mode of
Hearing) is very helpful. The factors include:
(1) whether the step is a significant step in
a proceeding, which includes considerations
such as whether the hearing is dispositive,
whether the order sought may impact on
the liberty of a litigant, and the complexity
of the matter,
(2) proportionality, fairness and efficiency,
as well as
(3) other factors such as the importance of
the open court principle, the nature and
complexity of the issues to be determined,
the relative impact to the parties, witnesses
and counsel, concerns about safety and
security, whether a matter relates to an Indigenous
person or group, access to justice
considerations and the importance of the
matter to the public interest and administration
of justice.
I hope that it will be a useful tool for counsel.
FP: As Chloe mentioned, the Final Report includes
a very detailed Model Framework for
Determining the Mode of Hearing which can be
applied to any type of file in both our civil and
common law systems. The Final Report concludes
with eight recommendations, and I invite
all advocates to read them (it is only two pages).
For me, one thing that we have been discussing
for the past few years is the use of technology
in courts, which is also addressed in the recommendations.
I think that the combination of the
“matrix” and the recommendations should lead
to permanent electronic service and filing in all
courts in all jurisdictions. This would include
making all materials filed with the court available
online to the public without fee and in fully
searchable format (with appropriate confidentiality/privacy
protections when appropriate).
Gain the Edge!
Negotiation Strategies for Lawyers
Wednesday, September 29, 2021 | 1:00 pm - 4:00 pm (ET) | Live Online
Featuring renowned negotiation
expert Martin E. Latz.
Renowned negotiation expert Martin E. Latz,
Founder of the Latz Negotiation Institute
(www.latznegotiation.com), has trained over
100,000 lawyers and business professionals
around the world to more effectively negotiate,
including in Bangkok, Beijing, Brussels, Hong
Kong, London, Prague, Seoul, Shanghai, and
Singapore. An Adjunct Professor – Negotiation
at Arizona State University College of Law from
1995 to 2005, Latz has also negotiated for the
White House nationally and internationally
on the White House Advance Teams. Latz -
a Harvard Law cum laude graduate – is the
author of Gain the Edge! Negotiating to Get
What You Want and The Real Trump Deal: An
Eye-Opening Look at How He Really Negotiates
(www.RealTrumpDeal.com). He has also
appeared on CBS, MSNBC, CNN, FOX and in
POLITICO, USA Today, The Globe and Mail, The
Economist, and many other publications.
This advanced negotiation seminar will increase your arsenal of strategies, techniques and tactics and help
you further develop the strategic mindset that’s at the heart of successful negotiation.
You Will Learn:
• Latz’s 5 Golden Rules of Negotiation
• Strategies to get past “No” – if all
appears lost
• Ways to gain leverage when
seemingly powerless
• Deadline and timing tips – manage them
to gain the edge
• When to hold – and when to fold
Testimonial:
Would recommend without hesitation
“I could not have enjoyed this session more. Engaging and
practical. Great lecturer. Would recommend others attend
without hesitation.”
Eligible CPD Hours:
This program contains 0.5 hour(s) of Professionalism content,
and is eligible for up to 2.5 hours of Substantive content.
This organization has been approved as an Accredited Provider of Professionalism
Content by the Law Society of Ontario.
22
To learn more or register, visit
www.advocates.ca

Q. What is your vision for your term as President? What are your priorities?
A. In the lead-up to my presidency I have heard a consistent message from our members: after
more than a year of physical distancing and travel restrictions we want to see each other again.
Maintaining a strong, connected and inclusive community of advocates as we emerge from the
pandemic is a critical part of the vision for the coming term. Holding in-person events across the
country as soon as circumstances permit is a priority.
The Society and our profession are in a period of transformation. How we practice as advocates
and deliver services to our members has fundamentally changed and will continue to change. The
Society recently released its report of the Modern Advocacy Task Force, The Right to be Heard: The
Future of Advocacy in Canada. We intend to pursue and promote the recommendations in the Report
with a view to ensuring that future changes to our practice before the Courts improve access
to justice and advance the quality and efficiency of our justice system.
INTERVIEW
Interview with
incoming TAS President,
Deborah E. Palter
Compiled by Michelle Alton,
Tribunal General Counsel
In this special Summer Edition interview, Advocacy Matters sits down with new TAS President
Deborah E. Palter. Deborah is a partner and commercial litigator at Thornton Grout Finnigan LLP
in Toronto.
Q. What role do you see 10+ members and members generally playing in the work of TAS?
A. Members are the lifeblood of the Society. 10+ advocates are the great connectors. They often
act as articling principals and mentors to those in the earlier stages of their career while working
closely with the most senior members of our profession. They tend to be early adopters of technology
and lead efforts to implement technological efficiencies to practice that benefit all of us.
The 10+ Standing Committee has played a critical role in collaborating with the various board
committees and task forces, in providing support and community to mid-career advocates, and
in promoting the work of The Society. The 10+ collaboration with the Young Advocates Standing
Committee (YASC) in developing and recording segments for the popular TAS podcast “Friends
Who Argue” in particular was genius. And I love the name! The podcast is an important vehicle for
communicating and connecting with our members at a time when it has been so challenging to
stay in touch. I enjoy hearing other advocates’ stories and look forward to hearing more conversations
in the coming term.
What does TAS mean to you? What do you want it to mean for TAS members and the
profession generally?
The Society has always been well known to me as the voice of advocates speaking out on important
issues related to access to justice and the administration of justice. Membership gave me the
opportunity to become involved in advocacy issues outside my practice area and to be part of a
larger national community of advocates. It has been very fulfilling to teach skills training, moderate
professional development panels and work on interventions and policy submissions that affect our
profession and practice – and to do it with so many interesting and engaging people. It has kept my
engines revving over the years.
I want TAS to be a place where its members enjoy a similar strong sense of community from
involvement in the Society’s programs, skills training and social events, and that our work together
continues to be recognized as crucial to facilitating the continued modernization of our
justice system as we emerge from the pandemic.
24 25

Q. What are your thoughts on the future of the profession?
A. The pandemic required an immediate shift to a virtual platform that brought much needed
technological advances to our justice system and provided a necessary vehicle for hearing cases
when there were no other options. This shift was successful in a time of crisis because of the extraordinary
effort, creativity and adaptability of advocates, judges, court and legal staff.
While our profession has now largely adapted to working on a virtual platform, the change in
how we practise as advocates is not over. Questions about how to enhance the quality of justice in
our country will be asked and answered in an environment where virtual and in-person advocacy
are both possible.
I’m very optimistic that the effort, creativity and adaptability we saw at the height of the pandemic,
combined with the greatly expanded options for virtual and in-person hearings, will advance
access to justice in ways we could not have contemplated two years ago. We have a much wider
range of choice in the manner in which we administer justice in this country than we did before
the pandemic. It will be important that we consider the long term consequences of recommended
changes to our profession and the administration of justice, and that we proceed wisely. Changes
to the way in which we practice and the way in which cases are heard over the next year or so
could stick.
Examinations for Discovery:
Building Block Series
Block 1: Theory, Strategy and Preparation (Plenary Session)
Friday, October 22, 2021
Block 2: Discovery Questions and Techniques (Plenary Session)
Tuesday, November 16, 2021
Block 3: Conducting an Effective Discovery (Skills Workshop)
Tuesday, December 14, 2021
Block 4: Using Discovery Transcripts at Trial (Plenary + Skills)
Thursday, January 20, 2022
Q. What have you missed the most during the pandemic?
A. I’ve missed the company of family and friends. I’ve missed unwinding with other advocates
over coffee or lunch. While there may be a work-related purpose to these get-togethers, they also
provided a critical release valve for the pressures of practice. I’ve missed all the chance encounters
in a day, whether in the hallways of the underground, the line-up at the sandwich place or
some pre-dinner cocktail event. I’ve also missed courtroom advocacy and all it entails.
And I’ve really missed seeing TAS members across the country and look forward to a time when
I can get on a plane, see the people I’ve been video conferencing with this past year and meet new
people too. I hope it won’t be long!
Meet the rest of the 2021-2022
TAS Executive Committee and Board here
Discoveries are high-stakes advocacy. An effective discovery
will help you optimize settlement or strengthen your case for
trial. Don’t leave your discovery skills to chance.
In this highly-anticipated new Building Block series
on discoveries, seasoned litigators and judges
will break down their most effective discovery
techniques over four sessions, providing you
with the tools, tips and strategies you need
to get the most out of your next discovery.
Developed by renowned litigators
Sandra Barton and Tom Curry – both
recipients of TAS's Excellence in
Teaching Award - and in consultation
with members of our Young Advocates’
Standing Committee, this interactive
and practical series will help take your
discovery skills to the next level.
To learn more or register,
visit www.advocates.ca
26

The Litigator’s Guide to the Business of Law
May 26, 2021 | Live Online
Brian Kolenda, Lenczner Slaght, Joseph F. Burke, Cox & Palmer, Jacqueline L. King, Shibley Righton LLP,
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Monique Jilesen, Lenczner Slaght and David Milosevic, Milosevic Fiske LLP
29

End of Term TM 2021
June 17, 2021 | Live Online
Deborah E. Palter, Thornton Grout Finnigan LLP
30 31
The Hon. Justice Suzanne Côté, Supreme Court of Canada
The Force Majeurs

An Advocates’ Guide to the Calgary Indigenous Court
June 21, 2021 | Live Online
Andrea Menard, Law Society of Alberta
Jessica Buffalo, Legal Aid Alberta
Adam Drew, Alberta Justice, Crown Prosecutor’s Office
Gerald Sitting Eagle, Blackfoot Elder
32 33

Trial and Error: Lessons Learned From Career Mistakes
July 6, 2021 | Live Online
Mary J. Paterson, Osler, Hoskin & Harcourt LLP
Greg Richards, WeirFoulds LLP
The Honourable Justice Mahmud Jamal , Supreme Court of Canada
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www.advocates.ca